Swaziland

The ITUC affiliate in Swaziland is the Trade Union Congress of Swaziland (TUCOSWA).

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Legal

last updated: 18 February 2014

Freedom of association / Right to organise

Anti-Union discrimination

The law does not specifically protect workers from anti-union discrimination.

Barriers to the establishment of organisations:

'Prior authorisation or approval by authorities required for the establishment of a union'

The Commissioner of Labour decides on the registration of trade unions. S/he may ask for any information in support of the application (Art.27 Industrial Relations Act).

Restrictions on trade unions' right to organise their administration:

Restrictions on the right to freely draw up their constitutions and rules

The law imposes substantive requirements on trade union constitutions, for example that a general meeting open to all members shall be held once a year and decisions to be taken during the general meeting (Art.29 Industrial Relations Act). Only fully paid up members are permitted to be members of unions and are allowed to participate in votes (Art. 20 and 30 Industrial Relations Act).

Categories of workers prohibited or limited from forming or joining a union, or from holding a union office:

Police

Export processing zone (EPZ) workers

Workers in export processing zones are not allowed to form trade unions.

Others categories

The Law bans prison staff from joining trade unions.

Right to collective bargaining

Barriers to the recognition of collective bargaining agents:

Art. 42 (3) Industrial Relations Act: If paid up union members represent less than 50 per cent of all workers in the bargaining unit, recognition for bargaining purposes shall be at the discretion of the employer.

Right to strike

Barriers to lawful strike actions:

Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike

After a dispute has been declared unresolved, the union may give strike notice to the Commissioner of Labour at least seven days before the strike. The Commissioner of Labour then holds a strike ballot and the majority of all employees have to vote in favour of the strike as a precondition. After a successful strike ballot the union has to obey another 48 hours notice requirement (Art.86 Industrial Relations Act).

Ban or limitations on certain types of strike actions:

Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)

Strikes are only permitted in the case of unresolved disputes which implies that sympathy strike are prohibited (Art.86 Industrial Relations Act).

Restrictions with respect to type of strike action (e.g. pickets, wild-cat, working to rule, sit-down, go-slow)

Protest action can only be taken after giving 21 days advance notice to the Commissioner of Labour explaining the reasons and nature of the protest action. Unions may not engage in purely political protest action. The Commissioner of Labour carries out a secret ballot to determine whether the majority of employees are in favour of protest action. After a ballot has been successful the union shall give another notice- at least 48 hours before the protest action (Art. 41 Industrial Relations Act).

Undue interference by authorities or employers during the course of a strike:

Authorities' or employers''' power to unilaterally prohibit, limit, suspend or cease a strike action

Art.89 Industrial Relations Act: The Minister of Labour may ask the Court to declare a strike illegal if s/he considers that it would threaten “national interest.”

Authorities' or employers' power to prevent or end a strike by referring the dispute to arbitration

In August 2014, the Prime Minister of Swaziland, Sibusiso Barnabas Dlamini, publicly threatened Sipho Gumedze from the Lawyers for Human Rights and TUCOSWA General Secretary Vincent Ncongwane because of their participation in the US Africa Leaders’ Summit in Washington DC. Prime Minister Dlamini made the following statement during a speech in Parliament: “They leave your constituencies and do not even inform you where they are going and once they come back and you find out that they are from your constituency you must strangle them.”

Suppression of Terrorism Act used to stop trade union activities01-05-2014

Police use the Suppression of Terrorism Act to legitimise interference in trade union activities. For example, the Act was used in May 2014 to arrest and charge activists who spoke at TUCOSWA’s May Day celebration, including student leaders Maxwell Dlamini and Mario Masuku. Both activists remain in jail and have been refused bail. Amendments were submitted for the consideration of Parliament in February 2014 but have not yet been considered. The Suppression of Terrorism Act defines terrorism extremely broadly as an act that “involves prejudice to national security or public safety…and is intended, or by its nature and context, may reasonably be regarded as being intended to intimidate the public or a section of the public; or compel the Government…to do, or refrain from doing, any act.” The terms “national security” and “public safety” are not themselves defined, leaving them open to wide and potentially subjective interpretation. Not only are these concepts capable of broad, subjective interpretation but, in addition, the element of intention is not required. Moreover, the act affords the Minister absolute discretion over the classification of organisations as “terrorist” without making this decision subject to judicial review.

Thulani Maseko and Bheki Makhubu imprisoned25-07-2014

Human rights lawyer Thulani Maseko and the Nation Magazine editor Bheki Makhubu were arrested on 17 March 2014 and 18 March 2014 respectively for writing articles about the circumstances surrounding the arrest of government vehicle inspector Bhantshana Gwebu and the integrity, impartiality and independence of the Swaziland judiciary. The legality of the arrest, detention and charges was successfully challenged before the High Court, resulting in their release from custody for two days. However, they were rearrested and detained when the State appealed the ruling and are therefore again in custody. While Thulani Maseko and Bheki Makhubu were charged with “contempt of court”, the judge convicted them to two years imprisonment instead of the ordinary 30-day sentence on 25 July 2014. Judge Mpendulo Simelane argued that “seriousness of their crimes, their moral blameworthiness and their lack of remorse or regret justify lengthy sentences of imprisonment”.

See Guide to the ITUC international trade union rights framework and civil liberties. The King’s Proclamation was decreed on 12 April 1973 and vested the King Sobhuza II with absolute powers and at the same time criminalised political parties and similar bodies.
“I, Sobhuza II, king of Swaziland hereby declare that, in collaboration with my cabinet ministers and supported by the whole nation I have assumed supreme power in the kingdom of Swaziland and that all legislative, executive and judicial power is vested in myself and shall, for the meantime, be exercised in collaboration with a council constituted by my cabinet ministers. I further declare that, to ensure the continued maintenance of peace, order and good government, my armed forces in conjunction with the Swaziland royal police have been posted to all strategic places and have taken charge of all government and all public services […] Political parties and similar bodies that cultivate and bring about disturbances and ill-feelings within the nation are prohibited.”
TUCOSWA requested permission to hold a march but on 4 April 2014 the Manzini Municipal Council denied the federation permission by stating that “April 12 is one most contentious date on which peace and stability in the country is threatened.” The march was intended to proceed from Jubilee Park to St Theresa Hall in Manzini on 12 April 2014. Vincent V. Ncongwane, TUCOSWA General Secretary, and Sipho Kunene, TUCOSWA Deputy President, were arrested at a security roadblock mounted at Mhlaleni in Manzini on 12 April. They were detained at the Manzini police headquarters and were denied access to legal representation. Vincent Ncongwane was transferred to the Mafutseni police station 20 kilometers from Manzini. The police further arrested other groups of workers at all the various security checkpoints mounted on the roadblocks leading to Manzini, detained and later dropped them off in remote places with some having to travel long distances on foot at night to get to the nearest public road. Amongst them were the President of the National Public Services and Allied Workers Union, Quinton Dlamini, and the General Secretary of the Private and Public, Transport Workers Union, Bheki Dludlu.

Basil Thwala imprisoned11-04-2014

Basil Thwala, a paralegal officer at the Swaziland Transport and Allied Workers Union, was arrested on a picket line at the bus station in Manzini following a major bus transport demonstration organised by STAWU in July 2012. Basil was charged and convicted for offences under both the Road Traffic Act and the Public Order Act for being in the front of the bus station protest. He was arrested and taken to a police station where he was not given food or a sleeping blanket. In fact, he had to spend several nights sleeping on the cold floor. Although Basil was initially granted bail, it was later revoked on the basis that he had breached his bail conditions by travelling to a place outside the restriction stipulated in the bail terms. No witnesses appeared in court to verify this allegation. In fact, his bail revocation was pronounced by the High Court of Swaziland when he was not even present in the court. Basil eventually ended up being sentenced to two years imprisonment. He lodged an appeal two months after his conviction, but there was never any indication that it was under consideration. It took the courts less than a month to convict him, but his appeal, filed on a certificate of urgency, was never dealt with. Basil was finally released after serving his full sentence.

In December 2013, police did not permit unions and other civil society organisations to hold a memorial service to mourn the death of Nelson Rolihlahla Mandela and to draw attention to the lack of democracy in Swaziland. About 30 police officers stood in front of the entrance of the Lutheran Church where the memorial service was planned to be held and did not allow entrance.

Amalgamated Trade Union of Swaziland not registered04-04-2014

Unions in the textile and apparel, mining, quarrying and related industries, and general manufacturing; metal workers; and unions in the engineering and retail, hospitality and catering sectors decided to merge in September 2013 to form the Amalgamated Trade Union of Swaziland (ATUSWA). Before launching its congress on 6 September 2013, the union filed its request for registration and its constitution with the Commissioner of Labour. The legal advisor of the Ministry met with the union leadership and asked for changes in the constitution. Even after complying with the requests, ATUSWA was not registered. On 2 January 2014, the union was told that it could only be registered if its constitution would be amended. The union duly responded and addressed those issues and clarified the basis upon which the application was founded. In a meeting on 4 April 2014 with the Commissioner of Labour, new issues were raised, including the name of the organisation. It was demanded that the word “amalgamated” be taken out, even though another union, the Swaziland Amalgamated Trade Union, had previously been registered without any concerns in this regard. This is one of the delaying tactics that have prevented the registration of ATUSWA for over nine months without any legitimate reason.

The Trade Union Congress of Swaziland (TUCOSWA) is still de-registered. TUCOSWA has challenged the constitutionality of the government’s refusal to register the federation at the High Court of Swaziland on 11 February 2014. A hearing on the matter was scheduled for 19 March 2014, but unfortunately the government arrested the union’s lawyer two days before the hearing, forcing the union to seek a postponement of the hearing date.

Repression of trade union activities during the Global Week of Action06-09-2013

Vincent Ncongwane, General Secretary of the Trade Union Congress of Swaziland, was arrested and put under house arrest for attempting to stage an illegal protest on 5 September 2013. TUCOSWA fully complied with Swazi laws by announcing a protest march for the Global Week of Action on 15 August 2013 to both police and the Commissioner of Labour. The Commissioner of Labour claimed not to have received the notice and argued that TUCOSWA may not organise any protests because it is not a registered trade union federation.

Jay Naidoo, Alec Muchadehama, Paul Verryn who were invited as international experts to act as panellists during the Global Inquiry Panel Swaziland as well as Paliani Chinguwo from the Southern African Trade Union Coordination Council (SATUCC) were questioned at the police station upon arrival in Manzini on 5 September 2013.

On 4 and 5 September police followed staff from the ITUC, COSATU, FES/DGB and Industriall around the clock. A few hours before the Global Inquiry Panel Swaziland was scheduled to begin, police and military entered the venue and blocked the meeting room. Senior police officers stated they had verbal instructions to prevent the inquiry but were not able to produce a court order.

See social dialogue Act (section 45) also promotes the establishment of Joint Negotiating Councils (JNC) to bargain over working conditions at the sectoral level. So far, only one JNC was established in the textile industry in 2005 between the Swaziland Textile Exporters Association (STEA) and the Swaziland Manufacturing and Allied Workers Union (SMAWU). But before an agreement could be reached, the STEA disbanded as a reaction to requests by the SMAWU to negotiate pay increases.

Prime Minister Sibusiso Barnabas Dlamini, when addressing heads of government parastatal companies, warned that management should only negotiate with unions that are “recognised by and working within the Swazi legal system”. This implies that the government encourages managers not to negotiate with TUCOSWA.

Police raided the head offices of TUCOSWA01-05-2013

Police raided the head offices of TUCOSWA at 8 am on 1 May 2013, arresting the President of TUCOSWA, Barnes Dlamini, and the 1st Deputy Secretary General, Mduduzi Gina. Their arrests followed that of Vincent Ncongwane, Secretary General of TUCOSWA, Muzi Mhlanga, 2nd Deputy Secretary General, and Jabulile Shiba, the Deputy Treasurer General, who were all placed under house arrest that morning. May Day celebrations organised by TUCOSWA at the Salesian Sports Ground in Manzini were forced to be called off, as police prohibited workers from shouting TUCOSWA slogans or from displaying TUCOSWA banners.

Police violently stopped a prayer meeting09-03-2013

On 9 March 2013, police violently stopped a prayer meeting on TUCOSWA’s anniversary. Police, carrying batons, took control of the Caritas Centre and stopped a commemoration prayer. The Swazi Government had, without a court order, decided that the prayers, organised by TUCOSWA were illegal because the workers’ group was not officially registered with the state.

Arrests of trade unionists12-04-2013

On 12 April 2013, Wander Mkhonza was again arrested in Lavumisa Border Gate on allegations that he was in possession of seditious pamphlets belonging to a political organisation.

See social dialogue Act (Article 40) provides for the civil and criminal liability of trade union leaders for legitimate trade union activities.

De-registration of federation27-02-2013

The Commissioner of Labour and the Attorney General decided on the de-registration of the Trade Union Congress of Swaziland (TUCOSWA) after TUCOSWA announced its campaign for free and fair elections. The Industrial Court ruled on 27 February 2013 that the Industrial Act does not provide for the registration of federations and asked the government to determine a modus operandi for registration together with TUCOSWA. In addition, all affiliates of TUCOSWA have petitioned the government to recognise TUCOSWA as their legitimate representative. The government refuses to meet TUCOSWA and to recognise it as a legitimate federation.